On January 28, 2017, President Trump signed an executive order setting new ethics commitments for incoming executive branch appointees (Ethics Executive Order or the Executive Order). Pursuant to the Executive Order, incoming appointees must sign a pledge through which they become contractually obligated to abide by certain ethics standards. These new standards have significant consequences for appointees and government relations professionals. A summary follows.

Who Is Covered?

The Ethics Executive Order applies to every appointee in every executive agency appointed on or after January 20, 2017. As with the Executive Order on ethics that President Obama signed in his first term, “appointee” under the Ethics Executive Order includes all full-time, non-career presidential and vice-presidential appointees, non-career appointees in the senior executive service, and any appointee to a Schedule C or similar position.

What Are the Restrictions on Incoming Appointees?

1. Two-year ban on participating in any matter directly and substantially related to their former employers or clients

The Ethics Executive Order requires all incoming appointees to pledge that for two years from the date of their appointments, they will not participate in any particular matter involving specific parties that is directly and substantially related to their former employers or clients, including regulations and contracts. This requirement applies to any incoming appointee, whether or not he or she was a lobbyist before entering service. This requirement and the relevant defined terms are unchanged from President Obama’s Executive Order on ethics.

2. Two-year ban on registered lobbyists participating in matters on which they lobbied

The Ethics Executive Order requires appointees who were registered lobbyists to pledge that, if they were registered within the two years before the date of their appointments, for two years from the date of their appointments they will not (1) participate in any particular matter on which they lobbied (as a registered lobbyist) within the two years before the date of their appointments or (2) participate in a specific issue area in which that particular matter falls. This language is similar to President Obama’s ban on lobbyists entering government participating on matters on which they lobbied. Notably, President Obama’s Executive Order also required such appointees to agree not to seek or accept employment with any executive agency that they lobbied within the two years before the date of his or her appointment. President Trump’s Ethics Executive Order does not include that ban.

3. No gifts from lobbyists

President Trump’s Ethics Executive Order also prohibits appointees from accepting gifts from registered lobbyists or lobbyist organizations for the duration of their service as appointees. The term “gift” has the same definition as under the existing executive branch ethics laws, but it incorporates far fewer exceptions. For example, appointees may accept modest items of food and refreshments not part of a meal, items of little intrinsic value, gifts made under the personal relationship exception, and certain other specified items, but such appointees may not take advantage of the general exception for gifts worth less than $20 nor may they accept free attendance at most widely attended gatherings. This restriction and the relevant definitions are identical to those found in President Obama’s Executive Order.

What Restrictions Apply to Appointees Leaving the Administration?

1. One-year restriction on contacting former agencies

Under President Trump’s Ethics Executive Order, certain senior administration officials who are subject to the criminal provision found in Section 207(c) of title 18 of the United States Code, which restricts their communications with and appearances before employees of their former executive agencies for one year, must pledge to abide by those restrictions. This provision does not impose any additional requirement on those officials that is not otherwise required of them under federal law. This differs from President Obama’s Executive Order, which had extended this criminal restriction to two years.  

2. Five-year ban on appointees lobbying their own agency

The new Ethics Executive Order prevents all executive branch appointees from engaging in “lobbying activities” (as defined under the Lobbying Disclosure Act), with respect to the agency with which they served, for five years after the termination of their government employment. The restriction is broader than the post-employment restriction above because it reaches all departing appointees, not just senior officials, and restricts behind-the-scenes advising as well as communications and appearances.  

3. Restriction on engaging in lobbying activities for remainder of the Trump administration

The Ethics Executive Order prohibits a former appointee from engaging in “lobbying activities” with respect to any covered executive branch official or non-career Senior Executive Service appointee for the remainder of the Trump administration. Although the five-year ban discussed above is receiving a fair amount of attention, this is perhaps the most significant new addition in the Executive Order. It is broader than the five-year ban discussed above because it reaches activities throughout the executive branch, not just the employee’s former agency. In addition, this provision appears to be more expansive than the similar provision in President Obama’s Executive Order. President Obama’s Order had prohibited “lobbying” as defined under the Lobbying Disclosure Act, rather than “lobbying activities.” The Office of Government Ethics interpreted the Obama administration ban to permit an individual leaving the administration to engage in some lobbying work, including behind-the-scenes advising and perhaps one direct lobbying contact, as long as he or she did not meet the statutory criteria for becoming a “lobbyist” under the Lobbyist Disclosure Act. This new Executive Order’s use of the phrase “lobbying activities” may result in an absolute ban on executive branch contacts and behind-the-scenes advising by appointees who leave the government, and that ban will last for the duration of the Trump administration. The Office of Government Ethics may clarify the scope of this ban in the coming weeks. We will keep you updated.

4. A lifetime ban on lobbying for foreign governments

Under the Ethics Executive Order, appointees must agree to a lifetime ban on engaging in any activity on behalf of any foreign government or foreign political party, as those terms are defined under the Foreign Agents Registration Act of 1938, that would require registration under that law if that activity were undertaken on January 20, 2017. Under existing law, certain employees leaving government are subject to a one-year ban on advising foreign entities. The Executive Order extends this ban to all appointees, for the entirety of their careers, when the work they are contemplating would trigger registration under FARA.

Please contact experienced counsel with any questions about the new Ethics Executive Order. We will keep you updated as interpretations are released.

© 2017 Perkins Coie LLP